Municipal fire departments and industrial fire brigades are facing off against a common concern—a loss of personnel over COVID vaccine mandates. They worry the mandates will burden already short-staffed agencies and organizations and lead to slower response times and catastrophes.
Mayor Henry Balensifer of Warrenton, Oregon, recently spoke out against Oregon’s mandate requiring public safety workers to get vaccinated by Oct. 18. He stated that if he loses too many firefighters over the mandate, it will force him to declare an emergency and ask for help from the Oregon National Guard. He noted the fire department protects lives and property from fires, but also provides needed EMS services.
“While this insidious disease creates hospital capacity issues and deaths—far more people in our city, county and state die from strokes, heart disease, and other causes that require fast attention from EMS providers,” he told Yahoo! News.
The Warrenton Fire Department has three paid staff and 20 volunteers. Fire Chief Brian Alsbury told Yahoo! News that number will drop into the single digits if unvaccinated firefighters refuse the vaccine and other vaccinated firefighters quit in solidarity as they’ve promised.
Alsbury, who supports the vaccine and plans to get it himself, worries what will happen if such refusals are widespread and affect other regional fire departments. He believes it will disrupt the mutual aid system, which many industrial fire brigades depend on, leaving fire departments and industrial facilities on their own as fires and medical emergencies occur.
Allyson Hinzman, a firefighter and president of the Tacoma Firefighters Local 31 in Washington, reported local unions oppose the state’s vaccine mandate, which goes into effect Oct. 18. They believe the state rushed the mandate and worry that it doesn’t allow for alternatives, like weekly COVID testing.
Hinzman also warns that if firefighters quit rather than comply, it will further strain labor-strapped public safety agencies.
“This isn’t about the vaccine,” Hinzman, who got vaccinated, told Kaiser Health News. “This is about providing our members the opportunity to choose and decide for themselves. We are provaccine, and we are pro public safety, but we are anti-mandate. The fact is you can be all three things at the same time.”
Firefighter associations also are divided over the mandates. The International Association of Fire Chiefs has expressed support for the mandates and encouraged members to get vaccinated while the International Association of Firefighters “strongly” encourages members to get vaccinated but is against mandates.
What Does the Law Say?
But what does the law actually say about vaccine mandates? Attorney Chase Hattaway, a partner at Rumberger-Kirk, a Florida-based law firm, says plenty. In his practice, Hattaway advises employers on compliance with state and federal laws. He reports his phone is ringing off the hook over state and federal vaccine mandates.
“A lot of employers want to require employees to get the vaccine,” he says. “But the market is tough right now and they are having trouble filling openings. We’ve been telling employers to look at your business and determine if this is something you need to require. For some employers, we’ve said if you have a small office and can space out employees, you may not need to require it.”
Of course, he adds this was their response before the Biden Administration directed the Occupational Safety and Health Administration (OSHA) to develop a ruling requiring employers with 100+ employees to require the vaccine and before many states passed their own vaccine mandates.
Hattaway reports he understands why federal, state and local governments may mandate vaccines for public safety workers, and goes so far as to say the aw likely supports it based upon the EEOC's current guidance. “They’re coming into contact with patients, and other firefighters, so there’s the potential to contract and spread COVID,” he says.
James Hodge, a professor of law at Sandra Day O’Connor College of Law and director of the Center for Public Health Law and Policy at Arizona State University, seems to affirm this. Hodge recently told WPR that specific entities can set vaccination mandates and will have strong legal support. For instance, a hospital can require employees to get vaccinated before engaging with patients. The same would hold true for public safety agencies.
Hodge added the government cannot force someone to take the vaccine but they can set a vaccine mandate that sets a condition on that person returning to society and to a particular activity unless they get vaccinated.
“You want to return to work? You want to attend your school (if you’re eligible for a vaccine)? States are setting vaccine mandates and private employers are doing the same because they can, legally,” he says. “That’s very different from a compelled vaccine.”
When asked how far they can go, Hodge stated “very far. The U.S. Supreme Court has even affirmed we can set vaccinate mandates at the state and local level. Right now, we have Supreme Court precedents that allow that to occur.”
Protections Through Policy
Hattaway says the law allows employers to require the vaccine, but qualifies this statement by saying, “as long as they provide accommodations for disability or sincerely held religious beliefs. An employer must at least explore the potential.”
he adds, "The EEOC has said that employers were entitled to require proof of vaccination, as long as they provided accommodations to employees who cannot take it because of disabilities or religious beliefs,” he says.
There will be legal challenges, he adds. Employers can tell employees they need to provide proof of vaccination, and if they do not, they may be disciplined all the way up to termination. But, he says, if an employer takes that route, they must provide accommodations to employees who cannot get the vaccine because of disabilities or religious reasons.
“Such accommodations might include allowing the employee to work remotely, allowing the employee to provide regular negative tests instead of obtaining the vaccine, or requiring the employee to wear a face covering while at work,” he explained.
He also notes that employers concerned about labor may want to provide these options—and even pay for them, just to maintain current staffing levels. “A lot of employers may not want to do that obviously, but it can mitigate concerns over losing employees,” he says.
However, Hodge warned in the WPR article, that though most states recognize religious exemptions for vaccines, states like California and New York no longer do. He also said that these exemptions have never been affirmed by the U.S. Supreme Court.
“We think there may be a case before the court soon where the court has to issue a statement. The court may say you have a recognized First Amendment free exercise interest to religiously object to specific vaccine mandates,” he said, noting that would make things interesting because it will make it harder to implement sweeping vaccine mandates.
An employer can question claims of “sincerely held religious beliefs” even if employees provide a note from their pastor. But Hattaway cautions to “tread lightly” with such objections.
“Though their claim may be suspicious, how can you say that it’s not a sincerely held religious belief?” he asks.
The same applies to disabilities. If an employee provides a doctor’s note saying, ‘This person has this condition and cannot receive the vaccine,’ it’s best to let it stand even if there are doubts.
Hattaway says he’s fielding questions about whether employees can receive unemployment benefits if their employers terminate them for refusing the vaccine. “This issue comes down to whether an employer has a policy in place that requires employees to get vaccinated,” he says. “If they have a policy in place and an employee refuses to get vaccinated, they have not complied with company policy. That’s misconduct and it will make them ineligible for unemployment benefits. But if they fire an employee without a policy in place, then it’s not misconduct.”
What About the OSHA Mandate?
President Joe Biden issued a new rule on Sept. 13 that requires all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly tests.
The President directed the government’s workplace safety arm, OSHA, to make a rule for vaccine mandates. There is no date when OSHA will create such a rule, only the directive to develop one.
Biden’s proposal allows an exemption if employees do not want the vaccine. They can provide weekly negative tests, but Hattaway says “this becomes difficult because employees have to take them on their personal time and pay for the tests. In practice, it will become exceedingly difficult to remain unvaccinated."
Hattaway expects there to be “credible challenges to the OSHA rule, " and adds, "Anybody who tells you they know how this will play out really doesn’t.”
He also cautions, “While it's hard to provide guess the standing of this this rule. You cannot just assume that the courts will deem it invalid. It’s best to collaborate with your employers and develop a solution.”